Roger Parloff on Supreme Court politics

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Did Justice Kennedy plan to write a sweeping Perry opinion until nervous liberal justices yanked the standing rug from under him? There’s been speculation to that effect ever since the Court’s big day, but now Roger Parloff of Fortune offers circumstantial evidence in the form of passages from Kennedy’s Windsor opinion (and Scalia’s dissent). Excerpt:

…it’s possible, and I think likely, that when Kennedy realized he wasn’t going to get to write an opinion on the merits in Perry he at least imported into the DOMA ruling some of his thoughts bearing upon how cases like Perry should be decided.

How can I possibly say that? Kennedy’s diction throughout his DOMA ruling (including the passages from it that Scalia quotes so bitterly) often evokes that of the briefs filed on behalf of the Perry plaintiffs (the same-sex couples eager to marry in California) more than that of the briefs filed on behalf of Edith Windsor, the plaintiff in the DOMA case.

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The Ugliness of Reverse Animus

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The 68-year-old proprietress of Arlene’s Flowers in Richland, Washington, is the target of a lawsuit by Washington state Attorney General Bob Ferguson because she refused to provide wedding flowers for a customer who was marrying his partner. Washington state legalized same-sex marriage in December.

According to CNN’s Belief Blog, Barronelle Stutzman, an evangelical, “said she agonized over the decision but couldn’t support a wedding that her faith forbids. ‘I was not discriminating at all,’ she said. ‘I never told him he couldn’t get married. I gave him recommendations for other flower shops.’”

Not surprisingly, “Among conservative Christians, Stutzman has become a byword—part cautionary tale and part cause celebre.”

Must progressivism decree that the power of the state be so absolute that there be no exemption from its dictate for religious conviction, not to speak of individual liberty? Apparently so, given Obamacare’s model of requiring private business owners to pay for their employees contraception, including abortifacient drugs, despite their religious convictions. In both cases, the state is not stopping one party from harming another; its forcing what it sees as positive behavior upon those who have a different view.

The pagans persecuted the Christians, and then the Christians came to power and persecuted the pagans. Similarly, there’s more here of animus against those who deviate from the one-true correct political line than anything else. It’s not only mean and vulgar, it’s politically counterproductive. But I’m sure using the power of the state to crush those who don’t toe the line makes those who can now persecute feel smugly empowered.

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Christie Fails to Evolve

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N.J. Gov. Chris Christie has proved a big disappointment. Having vetoed a marriage equality bill passed by the legislature, he’s now campaigning for reelection on his continuing opposition, although letting gay people marry has wide and growing support in his state (a Quinnipiac poll found 64% of New Jersey voters supporting gay marriage and only 30% opposed). But even worse, Christie went livid over the Supreme Court’s DOMA ruling, putting him to the social right of Sen. Rand Paul, who seemed to welcome the decision as turning the matter over to the states—despite his own stated belief that marriage should be reserved for a man and woman (which he plays up when courting evangelicals). Paul is a principled limited-government conservative unlike Christie, who seems to have no discernible political principles.

More. Christie may indeed by trying to outmaneuver Paul among socially conservative primary voters. That’s a good reason for gay Republicans and our friends to think about supporting Paul.

Furthermore. Christie lashes out at libertarians.

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Back to Basics

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Same-sex marriage came and went in the US Supreme Court, and the the most reactionary Republican dominated state legislatures responded by — passing new laws restriction abortion.  While the high court was deliberating a case challenging the power of Congress to prohibit or punish same-sex marriage under state law, Texas, Alabama, Mississippi, South Dakota and Indiana were all exploring creative ways to provoke the high court to revisit Roe v Wade.

The lack of an outcry about U.S. Windsor is partly due to the fact that the opinion left those states’ anti-marriage laws intact.  But the renewed focus on abortion and Roe, at a time when the highest court in the land was setting down a marker about marriage equality suggests something else is at work.

That something else can be seen in the non-reaction in California to the opinion overturning the notorious Prop. 8. In 2000, California voters passed Prop. 22, an initiative statute prohibiting same-sex marriage, with 61% of the vote.  The state Supreme Court overturned Prop. 22 as a violation of the state constitution in 2008, which prompted Prop. 8, an initiative that amended the state constitution itself to prohibit same-sex marriage.  Prop. 8 got a little over 52% of the vote, but a win is a win.

So California’s voters must be furious about the decision in Hollingsworth v Perry, right?

If so, it’s hard to see.  Less than two days after the ruling, the Ninth Circuit Court of Appeals took the final step to permit same-sex marriages again in California, and while a very few of the usual suspects showed their faces to television cameras at the subsequent marriages throughout the state, there are no signs of outrage among the voters whose will was thwarted.

Opposition to same-sex marriage is different from opposition to abortion.  There is a real and substantial moral question with abortion: At what point does human life begin?  In the 40 years since Roe, that moral question has remained alive and vibrant, and the constitutional argument about abortion has seldom flagged.  Moral feelings about abortion start strong and tend to stay strong.

Not so for same-sex marriage, where moral feelings may have started strong, but have weakened substantially over time.  The moral consensus around same-sex marriage was collapsing even before the Supreme Court weighed in.  With each new iteration of the issue, voters see less reason for opposition, more reason in the arguments made for equality.  The moral argument against same-sex marriage is no more than the moral argument against non-procreative sexual activity; once heterosexuals can see their own procreative sexual desires in the broader context of a world in which procreation is controllable, the idea of sex for other reasons — pleasure, relational intimacy, emotional bonding or just for the hell of it — moves homosexuals from their historical outsider status to a proper role as fellow members of the human family.  Procreation is a good thing, but it is not all that sex is for.

The shift back to abortion for the old guard of the GOP is some evidence that this cultural shift on same-sex marriage is taking hold.  It is harder and harder to argue against the images of joyous couples getting married, and now joyous heterosexual friends and family are joining in the celebrations.  Connection and inclusion are moral instincts, family imperatives, that it takes an effort to deny.

There is still a strong sense that abortion is worth the effort.  For a small minority, the fight against same-sex marriage will continue to be a priority.  But the continent on which they once stood is becoming more of an island every day.

 

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Whelan: I’ll use scare quotes around “marry” whenever I feel like it

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The other day on Twitter I criticized Ed Whelan, who writes at National Review “Bench Memos” and runs the religious-right Ethics and Public Policy Center, for using scare quotes around the word “marry.” More specifically, Whelan wrote of a hypothetical “Adam and Steve” (no, he still hasn’t tired of that trope) “who ‘marry’ in New York but reside (or later move to) Virginia.”

Now, responding to my criticism, Whelan has written a whole blog post on the topic. He expresses the view that it is “unfair and misguided” to take offense at the usage, and says my criticism has moved him to reflect that perhaps when referring to legalized same-sex marriage he should use scare quotes more often around the words “marry” and “marriage.” Following through on this, he proceeds in a second post to use scare quotes around the particular marriage of two actual people in California following the lifting of the Prop 8 ban.

Whelan claims that his difference with me arises solely from our difference on the substantive merits.* Yet a quick inspection of the dissents by Justice Antonin Scalia and Samuel Alito in U.S. v. Windsor shows that neither of them used ironic or scare quotes around “marriage” or “marry” when describing same-sex unions, with Scalia passing up at least 13 chances to do so and Alito passing up at least 16. Likewise, I believe many prominent critics of gay marriage, such as author Maggie Gallagher, generally avoid the scare-quote usage. I see no reason to suspect that these figures take a substantively different view of the marriage issue than does Whelan. I think the more likely explanation is that they are more concerned not to give offense.

National Review editor Rich Lowry recently complained that it’s terribly unfair to tar his colleagues with “animus” on this topic — they just oppose gay marriage on principle, that’s all. No doubt Whelan would also find it unfair too. He’s merely unwilling “to conform to a politically correct usage” just to avoid giving offense. So don’t go around getting him mixed up with those media-whipped wusses who hold back their true opinions — you know, the ones like Scalia and Alito and Gallagher.

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*As has been pointed out, a large body of traditionalist Catholics dispute the spiritual validity of remarriages by persons who have not had a church-approved annulment, yet a scare-quote formulation like “re-‘marry'” is seldom seen, outside perhaps an explicitly sectarian context.

More: welcome readers from Andrew Sullivan (Daily Dish) and Eric Zorn (Chicago Tribune).

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Heritage Debased

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Columnist Jennifer Rubin writes in the Washington Post:

If you want to know why social conservatives have effectively lost the battle over same-sex marriage with the American people, you need look no further than former senator and now Heritage Foundation president Jim DeMint.

She’s right that Heritage, while always wrong about gay rights, once could mount intelligent arguments; under Jim DeMint’s leadership, no more.

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Lessons from Alec Baldwin’s Tirade

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You see it’s easy: If you’re a progressive left-liberal Democrat, you can have all the nasty homophobic outbursts you want and Hillary Rosen, GLAAD and the rest of the party fronts will give you a free pass.

I don’t often agree with Andrew Sullivan these days, but this time he’s absolutely right.

More. James Kirchick weighs in:

If a white woman’s [Paula Deen] muttering the N-word in the hot aftermath of an encounter with a robber is a “revelation of actual attitudes,” how could a straight man calling a gay man a “toxic little queen” in the safety of an online social network not amount to the same sort of “revelation”?

Never mind that she stumped for Barack Obama in 2008; ridiculing Deen — this plumpy, white, Southern purveyor of comfort food — makes white liberals feel good about themselves. The same schadenfreude doesn’t apply to Baldwin, star blogger at the Hollywood insane asylum that is The Huffington Post, perpetually rumored New York City mayoral candidate and vocal advocate of all things right and liberal. For Queen Alec, the rules just don’t apply.

Furthermore. GLAAD’s last major bout of publicity was its condemnation of Fox News hosts for attending and supporting its annual Media Awards gala, following the Democrat’s Media Matters playbook. Now GLAAD defends a liberal’s anti-gay tirades. GLAAD is giving new meaning to “partisan hacks.”

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The “least reported fact” about Wednesday’s rulings?

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In the latest of their many writings purporting to advance the “truth about marriage,” on Thursday, at Public Discourse, traditionalists Sherif Girgis, Ryan T. Anderson and Robert P. George begin thus:

Here’s the least reported fact about yesterday’s rulings on marriage: the Supreme Court refused to give Ted Olson and David Boies, the lawyers suing to overturn Prop 8, what they wanted. The Court refused to redefine marriage for the entire nation….

The least reported fact, that is, except that major news organizations were not the least bit shy about reporting it. Reuters, the Los Angeles Times and the New York Times all put the Court’s refusal to overturn state marriage laws in the second sentence of their reports. The New York Times further handed over prime online space to none other than Ryan T. Anderson to say the same thing, while USA Today quoted Girgis-Anderson-George soulmate Tony Perkins, chair of the Family Research Council, reciting the same talking point. And so on for many other news reports.

So if you’re wondering whether Sherif Girgis, Ryan Anderson and Robby George managed to get even one sentence into their latest installment of the “truth about marriage” without veering sharply from the truth, the answer is: No, they didn’t.

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Gay Marriage and the Federal Budget

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If you haven’t heard much about the effects of DOMA’s downfall on the federal budget, that’s because there isn’t expected to be much of an effect. True, various benefits such as health and survivor benefits will now be paid to spouses of civilian workers and military personnel, and some gay persons will be entitled to Social Security benefits based on spouses’ earnings. On the other hand, it would not be surprising to see married gay couples’ income profiles falling more often on the “marriage penalty” rather than the “marriage bonus” territory on this interesting tax chart. And a host of benefit and subsidy programs, most importantly Medicaid but also other means- or income-tested programs, will save money once a spouse’s assets and income can be taken into account. All in all, a 2004 CBO study suggests the impact on the federal budget is likely to be very slightly positive. Josh Barro has the details here. He concludes:

The fiscal benefits aren’t a crucial reason to support same-sex marriage, but they do lend support to one of the “conservative” cases for it. Marriage is a structure through which people depend on each other, so they don’t have to depend on the government. For gay men and lesbians to take advantage of that fiscally friendly option, the government has to make it legal for us to marry.

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